Owning the Wolf: Property Rights, Ecology Rights

...Once the idea of ecosystem health becomes the centerpiece, ownership norms can go on to address other concerns—the social, political, and economic concerns that gave rise to private ownership long ago...

...But America's war against animals is still in the early stages of its second phase—its new, ecological phase...

...Tansley coined the term ecosystem in the 1930s, long before John Muir reminded us that when you pull one thing in the universe, you find it attached to everything else...

...If Jeremy Bentham were right, if property arose simply out of the law, environmentalists could turn to the lawmakers to bring about the changes that are needed...

...Yet as progress is made, a conceptual gap will likely widen...

...We need not and should not forget the economic benefits that come from protecting reasonable expectations...

...Courts could have responded to green-age concerns by expanding definitions of unlawful nuisance to encompass ecosystem-damaging conduct...

...For years, environmentalists have groped toward an overall goal for their efforts...

...Standing close to Blackstone in the property rights pantheon is natural-rights theorist John Locke...

...But the main contest has shifted from the roaming hunter to the settled landowner, with his plow, his cattle, and his bulldozer, and the questions have changed as well...

...Not only didn't the labor theory justify further ownership claims once scarcity developed, scarcity also ended the ownership rights of existing owners of the thing...

...It means the right to put land to its highest and best use, so long as that use doesn't interfere with lawful uses of neighboring lands...

...These two factors appear to embrace a good deal of common sense...

...Nothing else, he claimed hyperbolically, "so generally strikes the imagination and engages the affections of mankind...

...When we get down to it, private ownership today is justifiable primarily on the shifting grounds of utility...

...The stripminer, the timber clear-cutter, the abusive overgrazer, and the wilderness disrupter—all these take refuge behind Blackstone's figure of domination...

...After mid-century, as the messages of Aldo Leopold, Rachel Carson, and Barry Commoner penetrated the public conscience, ecological concerns gave rise to new shapes and limits on the entitlements of owning...

...Legislatures and regulatory bodies now keep property law up to date, in one fashion or another...

...It rests on the faulty assumption that a particular land parcel has a discrete existence...

...The claims, in fact, do date back to such an era, to a time long before A.G...

...Today's war over wildlife has as much to do with private property as it does with issues of animal rights or deep ecology...

...In the popular press, they include the Farm Bureau, National Rifle Association, and similar groups...

...Not surprisingly, courts applying these tests have reached widely differing conclusions on essentially identical facts...

...For oldtimers who remember when the last wolf carcasses were strung up, the wolf's return represents an annoying reversal in a war they thought they'd won...

...If we start with Blackstone's language of total domination, any alteration of the land is possible, without regard for its effects on neighbors, both human and nonhuman...

...It is easy to brush aside these property-based claims as throwbacks to an era of ecological ignorance...

...Two thousand miles away, in eastern North Carolina, the wolf is also making a contested comeback, in this case through captive breeding...

...The way many regulatory critics want to address this "takings" issue is by raising two questions...

...Even a U.S...

...In the next year or two Congress will return to the Endangered Species Act, again up for reauthorization...

...A person who mixed his or her labor with a thing, Locke announced, became the owner of that thing to the exclusion of the rest of the world...

...Is the government's liability for loss somehow heightened when damaging animals are deliberately added...

...If not full domination, what lesser rights might ownership rightly entail...

...As conditions change and values shift, utility calculations need to be revised, and social institutions based on those calculations need rejustification —not every day, to be sure, but on some regular or ongoing basis...

...It assumes, mistakenly, that lines drawn by a surveyor somehow can take precedence over natural interconnectedness...

...There are good reasons to guess that the language of owning will soon become more shrill...

...Supreme Court staffed by Reagan-Bush appointees has had little trouble discounting these two tests when the harmfulness of a proposed land use is in dispute...

...Bentham was as adamant in viewing private ownership as an artificial legal construct as Locke was in viewing it as a natural right that transcended the state...

...Concerns over the quality of urban life promoted zoning ordinances early in the century, ordinances that became more specific as "price of progress" arguments lost their force...

...Guiding the change must be some image of land health...

...Here it's not the gray wolf but its close kin, the red wolf...

...Ideally, all of this will happen in a way that gives landowners some notice of pending changes and that spreads the burdens evenly among owners of similar lands...

...In midwestern small-town coffeeshops, the right to ruin the land through erosion is an assumed stick in the bundle of ownership entitlements...

...Sustainable Growth A few winters ago, newspapers carried pictures of a lengthy fence, sprawling miles over open fields in the northern plains...

...As an endangered species, wolves in the northern Rockies are now protected by federal law...

...When it comes to real estate development, soggy wetland is not the same as a dry field, and ownership norms need to reflect the difference...

...If the environmental protection movement has a theoretical patron on the subject of property rights, it might well be another Englishman, Jeremy Bentham...

...The wetlands case required a tough choice, for wetlands sometimes have great value when drained or filled...

...FALL • 1994 • 487...

...Private property has become a rallying cry these days for the anti-environmental movement, and with some effect...

...With these indices in hand we can better assess the overall effects of particular forestry and mining practices, farming methods, and suburban sprawl...

...The labor theory applied, Locke noted, only when a sufficient quantity of the thing at issue existed for other people to have the same opportunity to mix their labor with it and gain ownership...

...Today, pollution is understood more as a symptom than a discrete problem...

...No doubt the preservation of parks and wilderness areas is a useful step...

...Indeed, when we extend Bentham's theory logically, regulation almost by definition can't interfere with property rights, for what the law gives, the law can take away...

...At the end of ten years, the taxpayers can buy the land again...

...To gauge how far a land value has declined we need first to know what land uses are considered lawful, yet this is exactly the issue that is the subject of the debate...

...Economists for decades have refined multiple indices to gauge the prosperity of market economies...

...Laws passed in the 1960s aimed mostly at limiting air and water pollution and saving a few scraps of wilderness...

...Property rights, Bentham claimed, arise by operation of the law...

...For this to happen, human institutions need reshaping in recognition of the functioning biotic communities where people live and get their food...

...In the twentieth century, courts have stepped back from their law-shaping work, at least in the property area...

...Perhaps we can then find more effective ways to reverse the declining trends, through ecosystem analysis, bioregional planning, and the like...

...Locke gave rise to the labor theory of property, which to his seventeenth-century readers justified private ownership in a way that placed it above the tampering of Stuart 482 • DISSENT kings...

...This was a human right that arose from the natural order, which meant it transcended the temporal power of the state...

...The wolf's reappearance is drawing no applause from western sheep- and cattleraisers...

...Or more aptly, alter the law and the elements and meanings of ownership change as well...

...All of these phrasings, however, are little more than slogans, attempts to capture in sound-bite form a model of natural functioning that is still well beyond our understanding...

...Ownership can still carry defined powers to resist the human community, like the right to keep other humans at bay and to ask police to show their warrants...

...And while Blackstone's view may be yielding, its defenders are many and vocal...

...Bentham, it would seem, fills the theoretical gap...

...Some day, too, regulatory bodies may get serious about biologically degraded forests and widespread overgrazing, problems that also will lead to ownership restraints unless landowners suddenly embrace 486 • DISSENT the kind of ethical ideals that Aldo Leopold had in mind...

...It is wrong when it tends otherwise...

...Second, does the regulation restrain the landowner from a harmful land use, or does it instead obligate the owner to use the land so as to benefit the public...

...But the protection of expectations need not go so far as to freeze ownership norms...

...Can owners bar entry by animals because they fear predation or don't want to share their natural forage...

...It offers evidence of a larger disconnectedness between people and the land, a not-so-subtle clue that human ways and nature's ways are simply too far off alignment...

...such is the earth when left to itself...

...Leopold's ethic has triggered criticism because it leaves people out of the picture, or at least the human place in it is ambiguous...

...For ranchers and other rural landowners, more animal trouble lies ahead...

...Among the social institutions that will require change, the institution of private ownership stands high on the list...

...Alternatively, they could have created or reformulated other common-law doctrines that pushed owners to become responsible land stewards...

...But the wolf's return is being handled cheaply and efficiently by the wolves themselves as they drift across the border from Canada, trying their best to steer clear of poisoned bait and speeding pickup trucks...

...Like property law itself, Bentham's ideas provide merely a means, a way to get rid of natural law claims of independence...

...Aldo Leopold offered one possible phrasing back in the 1940s...

...In a much-noted 1992 decision, Lucas v. South Carolina Coastal Council, Justice Scalia derided these tests as mere politics in disguise...

...Trees growing on a steep slope are not the same as trees growing on a flat field, where the corrosive pressures of rain are less potent...

...But Bentham was only half correct...

...When the Army Corps of Engineers denies a fill permit, hasn't the land been taken by the government, with compensation due the owner...

...The idea of property as "despotic dominion" offers an unmistakable baseline from which to determine how far a regulatory measure has cut into the essence of ownership...

...They're the people who own the land the wolf wants to roam...

...But these new images were merely laid on top of the old ones, and did not displace them...

...The public outcry, for a moment, was loud...

...Just picture the hapless farmer out in South Dakota who's simply trying to make a living...

...The core claim is that onerous land-use restraints amount to a taking of private property without the just compensation that the Constitution requires...

...We need varied ways of assessing the prosperity of a region in terms of its animals, plants, soils, waters, and air...

...The fence was constructed by a private landowner who wanted to save his grass to feed his domesticated livestock...

...In Leopold's view, the natural community is the locus of moral value, not the individual animal or plant...

...All he seeks is to drain a few prairie potholes and plant a bit of wheat...

...In some manner humans and animals must co-exist, for the benefit of both sides...

...In fact, Bentham's utilitarian views can support any scheme of ownership—including Blackstone's full dominion—when voters want it that way...

...Two centuries later, Blackstone's image of lordship still carries great weight...

...That issue is raised most potently today by the National Rifle Association...

...What Rights...

...What should it mean for a person to own land that is an integral part of an ecosystem of which humans are a part...

...When these new ownership norms are fully in place, perhaps they, too, will seem as intuitive and natural as Blackstone's once did...

...Bentham himself was no friend of wild places, unimproved by the touch of a human owner...

...They'll be limited to practices that later generations can sustain without impairment of the land's productivity...

...However the environmental goal is phrased, green measures need to aim at the enhancement of functioning, resilient ecosystems...

...Like the drop-in-value test, the harm-benefit test is largely useless without prior agreement on the landowner's baseline entitlement...

...That value drops, sometimes almost completely, when the owner must leave the land alone...

...When a landowner erects a fence, he proclaims an independence from surrounding people and lands...

...How must they change when we start viewing the landowner also as part of a natural community...

...A century ago, the American law of property was very much a creation of judicial decisions...

...To make the decline even steeper, we could start with the hidden assumption underlying many conservative calculations— that the owner of the regulated land parcel is free to do whatever he or she wants while neighboring landowners abide by the contested regulation...

...The interior of that immense region," he said of the vast North American wilderness, "offers only a frightful solitude, impenetrable forests or sterile plains, stagnant waters and impure vapours...

...But the expectations that gain protection tomorrow will be limited to land-use practices that are ecologically sound...

...But rhetoric like this does little to advance the search for modes of living that allow humans to thrive while sustaining the health of surrounding natural areas...

...Is it right for humans to reshape at will the land and its native inhabitants, leveling its hills, replacing its flora, and driving its animals toward oblivion...

...As a statement of law, Blackstone's stark summary was far from true when he wrote it...

...It offers a shield for the wetland owner whose draining and filling saps nature's ability to soften pollution and moderate flooding...

...Or is there, as environmentalists suggest, some transcendent value at stake—not perhaps in the individual wolf, but in the functioning natural order that includes wolves as well as people...

...The individual deer counted for little in the moral calculus...

...Like Bentham, Blackstone, and modern economists, we are likely to see value in a property scheme that protects expectations and rewards economic enterprise...

...The development of a new image of ownership is closely related to the quest for measures of ecosystem health, but it is sufficiently distinct as an agenda item to deserve separate attention...

...Locke was smart enough, however, to know that his labor theory justified private ownership only in certain cases...

...A thing is right," Leopold FALL • 1994 • 485 concluded, "when it tends to preserve the integrity, stability, and beauty of the biotic community...

...So what, then, does the regulation do: ask the landowner to confer a public benefit, or halt a public harm...

...Framed broadly, the issue that the wolves present is the familiar one of domination...

...He limited his theory with an important proviso, one that property defenders today are less apt to remember...

...Leopold the wildlife manager was prepared to thin the deer herd when it threatened the stability of the ecosystem...

...But these claims deserve a direct and fair look, particularly as FALL • 1994 • 481 the environmental cause shifts more of its focus from pollution control to land management and ecosystem health...

...What could be more ordinary and harmless than wheat growing...

...The ranchers who object to the wolf's return are not just any people...

...Perhaps most sharply, can owners bar entry by animals that the government has reintroduced...

...Although land-use regulation is now common, at least in urban areas, Blackstone and Locke have continued to reign as our chief property theorists in the popular realm...

...They're the people who envelope the land with their claims of private ownership, drawing as they do so upon rich veins of thinking on individual rights and the individual's power to resist community desires...

...Many of the new, pro-environment regula484 • DISSENT tory measures were based on far different ideas of land ownership, sometimes cloaked expressly in the language of stewardship...

...It is not enough for the law alone to change...

...Here the rhetoric of property rights was sharply honed, as the critics of ecosystem planning refined their current tools...

...But so dominant had legislatures become by mid-century, so timid and mechanical had courts become in their reasoning, that old notions of ownership lingered on, carryovers from the age of lightly bridled exploitation...

...However different the vegetation and terrain, the claims of private ownership ring much the same in the eastern woods...

...Like many social constructs, the institution of private property makes sense only to the extent that its consequences are good ones...

...Property is indeed a human creation, not some natural institution ordained from above...

...A prime supporter is the American Farm Bureau, which as much as any group yearns for the old days when landowners could do as they pleased...

...And in the eyes of the "wise-use" movement and other private rights proponents, they are...

...As we reconceive ownership, we need to put our now-discrete tracks of individually owned land back into the ecosystems of which they are, by nature, an inextricable part...

...When we start with the assumption that landowners can do what they please, any regulation, every regulation, becomes suspect...

...If environmentalists have much to say about it, the act will focus less on individual rare species and more on wildlife habitat, including habitat on private lands...

...Farmers demand compensation for nearly every erosion-control step...

...The right to till from edge to edge is also an assumed right, and payment is expected when acres for wildlife are left untilled...

...But it is more an expression of culture than of law...

...If we assume the opposite, that draining is an unnatural, unauthorized land use, then the regulatory measure simply halts a harmful act...

...When popular support ends, so do the rights...

...So do conservative lawmakers, who in state after state have introduced bills with appealing names like "The Private Property Rights Act," all aimed at undercutting future if not existing land-use controls...

...Under recent farm bills, taxpayers have funded ten-year conservation set-asides, often paying for the ten-year hiatus more than the land would fetch in an outright sale...

...In discussions in and out of courtrooms, the baseline of ownership remained the mythical absolute that prompted Blackstone to wax so effusively...

...Responsibility for the wolf's comeback ought to rest with the many government land agencies that have spent millions of dollars studying the benefits and options of wolf reentry...

...Some environmentalists prefer a related phrasing, in terms of ecosystem health, a goal that draws its strength from the useful, albeit literally inapt, analogy to the health of an individual organism...

...When scarcity developed— as today it always does—the theory no longer applied...

...It has never been true since, either in England or the United States, for the rights of one owner have always been tempered by concerns of neighbors and the surrounding community...

...If private ownership means anything, the argument goes, it means the right to exclude, to halt trespasses by animals with two legs or four...

...If we assume that a landowner has the right to drain a wetland, then a regulation halting that action requires the landowner to use the land in a way beneficial to the public...

...In some manner, the image of a healthy land needs to include people and their aspirations...

...Once the slate is wiped clean, solid aims of some type must guide the process of reconstruction...

...Whether by coincidence or intent, the fence stood in the migration path of a pronghorn herd...

...The language of owning retained its nineteenth-century flavor, little affected by the lessons of ecology...

...Land-use regulations didn't really redefine what ownership was all about...

...Private Property In the increasingly loud defense of private ownership rights, no quotation is more revered than Sir William Blackstone's characterization of property as "that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe...

...Take away the restrictions, and the rights of full use remained...

...It's a good slogan—one of the best—and conservative fundraisers know it...

...Today's most popular phrasing of the land ethic is in terms of sustainability or, to use the more vague, internationally favored term, sustainable development...

...Still, Blackstone was right on one point: the idea of property as domination grips the imagination with great tenacity, so much so that alternative images can hardly compete...

...When Leopold talks about the biotic community, which human influences are considered natural and which are not...

...The overriding goal of the nineteenth century was to foster economic growth...

...It's the kind of common sense that conservative critics like to play upon...

...But land preserves simply create islands of health, while the rest of the countryside slides down...

...It takes only modest probing to find the weakness in this reasoning...

...In the environmental age, the entitlements of ownership need to shift considerably if the health of ecosystems is to survive the short-term, self-centered acts of individual owners...

...In deciding how a land parcel can be used, the natural differences among parcels need to take on far greater importance...

...they imposed restrictions and restraints on what owners could do...

...Early clashes in this new conflict involved challenges to hunters who wanted the freedom to kill animals as they saw fit...

...Flexibility must remain, enough to nudge the law of property, step by step, toward the protection of the larger natural whole...

...Benthamite rights last only so long as the people's representatives want them to last...

...Is it simply individual liberty or selfrealization...

...This wind blew strong, and courts bent with it to make supportive changes to the law, allowing factories to spew smoke and noise and railroads to throw off dangerous sparks, all without incurring liability to neighbors whose more sensitive land uses suffered...

...it was the deer herd that possessed value, or the natural community of which it was a part...

...As environmentalists have moved beyond the containment of discrete sources of pollution, they have increasingly seen the need for an overall goal—if not Leopold's land ethic, then something similar to it...

...The urgent need today is to get beyond slogans, to develop workable measures or indices of the integrity and functioning of natural areas, including areas where people live...

...But if property is a means to an end, a means that we fine-tune as we go along, what is the end...

...Yet even the Supreme Court's critique hasn't quieted the clamor for a litmus test that readily identifies regulations that cut too deeply into landowner rights...

...Each farm must leave room for wildlife, and net soil loss must end...

...Property norms in the past have helped individuals relate to the social community...

...what could be less noxious or nuisance-like...

...Blackstone's image needs replacement in the popular culture as well, and that will happen only when an appealing replacement image is offered, one that can grip the imagination as powerfully as Blackstone's has...

...it is a means to achieve an end, not an independent end that can stand alone...

...Unable to move forward to their wintering grounds, the antelope died of starvation...

...Planted in crops, it's worth hundreds of dollars per acre...

...If Bentham had prevailed instead, if we had come to view property as a creation of the state rather than some natural right, notions of ownership could have evolved with each new generation of legislation...

...Some year soon, states may begin to deal with non-point-source water pollution, which can only be addressed through significant changes in land-use practices on a watershed-bywatershed basis...

...The Wetlands Case Before the controversy over endangered species became so heated, there was the matter of wetlands preservation...

...Take away the law, and the rights of property disappear...

...This slick, unspoken twist of reasoning raises even further the value of the particular land parcel being examined, FALL • 1994 • 483 thereby making even more dramatic the price decline brought on by the regulation...

...The ecological image of a land parcel—based on interdependence, diversity, and community—will drift further and further from Blackstone's vision of discreteness and independence...

...Can owners alter their lands in ways that destroy valuable animal habitat, whether for endangered species, threatened species, or even common species that simply need a decent place to live...

...Similar indices are needed in the environmental area...

...The model act was drafted by the American Legislative Exchange Council, a probusiness organization of state legislators...

...To the radical environmentalist, the wolf has as much right as the rancher to live on the high plains—perhaps even a better right, given that the wolf was first in time...

...This kind of independence has certain social and political values to it, but it is based on a fundamental misunderstanding of nature's ways...

...In the end, however, environmentalists need to be careful with Bentham, and with the idea that property laws (and other laws) can take whatever form the majority wants...

...Over the past year, lawmakers in at least ten states have introduced bills to require compensation when state regulation reduces the value of private land by a particular percentage—typically 50 percent—as if the calculation involved merely value-free arithmetic...

...It can continue also to embrace an economic discreteness in the sense that the land's economic produce belongs to the owner...

...Using this baseline, regulations often bring about a considerable decline in land values...

...It makes no more sense, in this view, for humans to own wolves than for wolves to own humans...

...On the academic side, they include conservative writers like Richard Epstein of the University of Chicago, whose much-maligned 1985 book, Takings, lent credence to a stark, antediluvian vision of landowner dominance and independence...

...In the case of the wolf, this domination story contains a special, potent element...

...The more the land value drops and the less harmful the activities the landowner has in mind, the more essential it is for the government to pay...

...First, how far has the land value dropped because of the regulation...

...Left as wetland, the land value is close to nothing...

...Further restrictions may be required if someone ever figures out why populations of amphibians are declining around the world and why the songs of migrating birds grow fainter year by year...